DCIT, Circle - 12, Kolkata, Kolkata v. M/s. Geo Miller & Co. Pvt. Ltd., Kolkata

ITA 555/KOL/2010 | 2006-2007
Pronouncement Date: 21-05-2010

Appeal Details

RSA Number 55523514 RSA 2010
Assessee PAN AABCG7777Q
Bench Kolkata
Appeal Number ITA 555/KOL/2010
Duration Of Justice 2 month(s) 3 day(s)
Appellant DCIT, Circle - 12, Kolkata, Kolkata
Respondent M/s. Geo Miller & Co. Pvt. Ltd., Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Department
Bench Allotted B
Tribunal Order Date 21-05-2010
Assessment Year 2006-2007
Appeal Filed On 18-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI B . C. MEENA AM] I.T.A. NO.555/KOL/2010 ASSESSMENT YEAR: 2006-07 DEPUTY COMMISSIONER OF INCOME-TAX -VS- M/S. GEO MILLER & CO. PVT. LTD. CIRCLE-12 KOLKATA. (PA NO. AABCG 7777 Q) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI PIJUSH KOLHE RESPONDENT BY : SRI S. M. SURANA O R D E R PER D. K. TYAGI JM: THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER OF THE LD. CIT(A) KOLKATA DATED 27.01.2010 FOR ASSESSMENT YEA R 2006-07 ON THE FORLLOWIG SOLE GROUND : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCES OF RS.10 73 436/- U/S. 36(1)(VA) READ WITH SEC. 2(24)(X) OF THE I. T. ACT FOR DEPOSITING THE EMPLOYEES CONTRIBUTION TO PROVI DENT FUND BEYOND THE DUE DATES WITHOUT APPRECIATING THE FACTS OF THE CASE. 2. BRIEF FACTS OF THE CASE ARE THAT THE AO IN THE A SSESSMENT ORDER OBSERVED THAT FROM THE TAX AUDIT REPORT THE AO NOTICED THAT THE ASSESS EE HAS DEPOSITED THE EMPLOYEES CONTRIBUTION TO P.F AMOUNTING TO RS.10 73 436/- AFT ER THE RESPECTIVE DUE DATE. HE ALSO OBSERVED THAT AS PER SECTION 2(24)(X) OF THE I. T. ACT 1961 THESE AMOUNT CONSTITUTE INCOME OF THE ASSESSEE. FURTHER AS PER SECTION 36 (1)(VA) OF THE ACT ANY SUM RECEIVED BY THE ASSESSEE ON ACCOUNT OF EMPLOYEES CONTRIBUTIO N TOWARDS PROVIDENT FUND IS ALLOWABLE ONLY IF SUCH IS CREDITED BY THE ASSESSEE TO THE EMPLOYEES ACCOUNTS IN THE RELEVANT FUND ON OR BEFORE THE RESPECTIVE DUE DATES . SINCE THE ABOVE MENTIONED AMOUNTS HAVE BEEN DEPOSITED AFTER THE RESPECTIVE DU E DATES THE BASIC CONDITION LAID IN SECTION 36(A)(VA) IS NOT SATISFIED. HENCE THE DED UCTION U/S. 36(1)(VA) IS NOT AVAILABLE TO THE ASSESSEE. THEREFORE THE AMOUNT OF RS.10 73 43 6/- WAS DISALLOWED AND ADDED BACK BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE. IN APPEAL THE LD. CIT(A)DIRECTED THE AO TO ALLOW THE ASSESSEES CLAIM FOR A DEDUCTION U/S. 43B IN RESPECT OF EMPLOYEES CONTRIBUTION. AGGRIEVED BY THE SAID ORDER NOW THE REVENUE IS IN APPEAL BEFORE US. 2 3. AT THE TIME OF HEARING BEFORE US THE LD. DR REL IED ON THE ORDER OF THE AO AND SUBMITTED THAT THE AO HAS RIGHTLY HELD THAT SINCE T HE ASSESSEE DEPOSITED THE AMOUNTS OF P. F. CONTRIBUTION AFTER THE RESPECTIVE DUE DATES THE BASIC CONDITION LAID IN SECTION 36(A)(VA) OF THE ACT IS NOT SATISFIED AND HENCE TH E DEDUCTION U/S. 36(1)(VA) HAVE BEEN RIGHTLY DENIED BY THE AO. HE ALSO SUBMITTED THAT T HE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE U/S. 36(1)(VA) READ WITH SECTION 2 (24)(X) OF THE I. T. ACT FOR DEPOSITING THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND BEYON D THE DUE DATES WITHOUT APPRECIATING THE FACTS OF THE CASE. HE LASTLY URGE D BEFORE THE BENCH TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THAT OF AO. 4. ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSES SEE RELIED ON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ISSUE IS COVERED IN F AVOUR OF THE ASSESSEE BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CAS E OF ACIT VS- M/S. HAMILTON RESEARCH & TECHNOLOGY (P) LTD. IN ITA NO. 477/KOL/1 996 FOR AY 1992-93 DATED 7.11.2000. HE ALSO PLACED RELIANCE ON THE FOLLOWIN G CASE LAWS : I) CIT VS- AIMIL LTD. (2010 ) 229 CTR 418 (DEL) II) CIT VS- P. M. ELECTRONICS LTD. (2009) 177 TAXM AN 1 (DEL) III) KUBER HINGES (P) LTD. VS. ITO (2009) 120 TTJ 2 84 IV) ITA NO. 1387/K/2006 ACIT VS- M/S. VISHAL RETAI L PVT. LTD. AY 2003-04 DT. 11.5.2007 AND V) ITA NO. 1218/K/2008 DCIT VS- THE EMPIRE JUTE CO . LTD. AY 2004-05 DT. 25.9.2008. 5. AFTER HEARING THE RIVAL SUBMISSIONS CAREFULLY P ERUSING THE MATERIAL AVAILABLE ON RECORD AND THE CASE LAWS CITED BY THE LD. COUNSEL F OR THE ASSESSEE WE FIND THAT IN ITA NO. 477/KOL/1996 FOR AY 1992-93 ACIT VS- M/S. HAMI LTON RESEARCH & TECHNOLOGY (P) LTD. DT. 7.11.2000 WHEREIN THE COORDINATE BENCH OF THIS TRIBUNAL HAS HELD AS UNDER : 4. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL O F THE RECORD IT APPEARS THAT THE DEDUCTION WAS MADE FROM THE SALARY AND WAGES AND IT WAS DEPOSITED WITHIN 15 DAYS FROM THE DATE OF DEDUCTION AS PER P. F. SCHEME. CHA PTER V OF THE EMPLOYEES PROVIDENT FUND SCHEME 1952 DISCUSSED THE CONTRIBUTIONS. ACC ORDING TO SECTION 29(3) THE CONTRIBUTION SHALL BE CALCULATED ON THE BASIS OF THE BASIC WAGES D.A AND RETAINING ALLOWANCE ACTUALLY DRAWN DURING THE WHOLE MONTH. AS PER SECTION 38 THE MODE OF PAYMENT OF CONTRIBUTION WAS DEFINED AND ACCORDINGLY THE EMPLOYER SHALL BEFORE PAYING THE MEMBER HIS WAGES IN RESPECT OF ANY PERIOD OR P ART OF PERIOD FOR WHICH CONTRIBUTIONS ARE PAYABLE DEDUCT THE EMPLOYEES CO NTRIBUTION FROM HIS WAGES WHICH TOGETHER WITH HIS OWN CONTRIBUTION. IT WAS ALSO EX PECTED THAT HE SHALL WITHIN 15 DAYS OF THE CLOSE OF THE EVERY MONTH PAY THE SAME TO THE FU ND. 3 5. FROM THE ABOVE IT IS CLEAR THAT DEDUCTION WILL HAVE TO BE MADE ACTUALLY DRAWN AMOUNT WHICH WAS SUPPOSED TO BE DEPOSITED WITHIN FI FTEEN DAYS OF THE CLOSE OF EVERY MONTH. IN THE INSTANT CASE THE PERIOD WAS RECKON ED FROM THE DATE OF THE ACTUAL PAYMENT OF THE SALARY AND THE CONTRIBUTION WAS DEP OSITED WITHIN THE TIME LIMIT OF FIFTEEN DAYS. SO WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE CIT (APPEALS) WHO HAS TAKEN THE RELEVANT DATE ON THE BASIS OF ACTUAL PAYM ENT OF THE SALARY. MOREOVER IN THE PAST THIS PRACTICE WAS ALLOWED BY THE DEPARTMENT. SO BY CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE WE SEE NO MER IT IN THE APPEAL FILED BY THE DEPARTMENT AND THE SAME IS HEREBY DISMISSED. IN VIEW OF THE ABOVE WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND FEEL THAT MATTER SHOULD GO BACK TO THE FILE OF THE AO TO VERIFY WHET HER THE FACTS OF THE ASSESSEES CASE ARE COVERED BY THE RATIO AS LAID DOWN IN THE CASE OF AC IT VS- M/S. HAMILTON RESEARCH & TECHNOLOGY (P) LTD. THE APPEAL OF THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. 7. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21. 5.10 SD/- SD/- (B. C. MEENA) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 21ST MAY 2010 COPY TO : 1. DCIT CIRCLE-12 KOLKATA. 2. M/S. GEO MILLER & CO. PVT. LTD. 7A KIRAN SHANKAR ROY ROAD KOLKATA-1. 3. CIT(A) KOLKATA. 4. CIT KOLKATA. 5. D.R. ITAT KOLKATA. TRUE COPY BY ORDER DEPUTY REGISTRAR JD.(SR.P.S.) I.T.AT. KOLKATA